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Showing 401 to 420 of 547 Records

• 2012 (2) TMI 271 - CESTAT, NEW DELHI
  

  Whether proceeding dropped before revalidation law shall revive after revalidation – GTA services - proceeding initiated by SCN dated 31.12.98 ended with no liability - said proceeding was revalidated by SCN dated dated 9.2.2004 u/s 116 of Validation Act, 2000 - Held that:- Under the provision of law at the relevant point of time when recipient was not required to discharge tax liability for availing GTA service filing of return did not arise. Once such legal obligation was not there, it cannot be said that Section 73 of Finance Act, 1994 is invokable. Accordingly, appeal is allowed without re-adjudication.

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• 2012 (2) TMI 269 - SUPREME COURT
  

  Offence committed under Negotiable Instrument Act - non-payment of debts arising out of dishonour of cheques - sanction of a scheme u/s 391 of the Companies Act, 1956 – whether such sanction amounts to compounding of an offence u/s 138 read with Section 141 of the N.I. Act - High Court held aforesaid in negative and also held that such sanction will not have the effect of termination or dismissal of complaint proceedings under N.I. Act – Held that:- In the instant appeal in most of the cases the offence under the N.I. Act has been committed prior to the scheme. Therefore, the offence which has already been committed prior to the scheme does not get automatically compounded only as a result of the said scheme. Scheme u/s 391 of the Companies Act cannot have the effect of overriding the requirement of any law.

  Further, basic mode and manner of effecting the compounding of an offence under Section 320 of the Criminal Procedure Code cannot be said to be not attracted in case of compounding of an offence under N.I. Act in view of Section 147 of the same. However, the main principle of such compounding, namely, the consent of the person aggrieved or the person injured or the complainant cannot be wished away nor can the same be substituted by virtue of Section 147 of N.I. Act. For the reasons aforesaid - Appeal stands dismissed.

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• 2012 (2) TMI 268 - BOMBAY HIGH COURT
  

  FERA 1973 - Release of foreign exchange in violation of the instructions of the RBI resulting in a violation of the relevant provisions of the FERA 1973 - allegation against the Appellants is a failure to discharge their responsibilities under the law and to ensure legal compliance - Section 68(1) & 68(2) – Held that:-The burden of establishing a defence in terms of the proviso to subsection (1) of Section 68 lies upon the person against whom the contravention is established under the substantive part of the provision. Having failed to establish their burden, the absence of connivance cannot come to the aid of the Appellants. Hence, no substantial question of law would arise in these appeals. The Appeals are accordingly dismissed.

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• 2012 (2) TMI 267 - CESTAT, NEW DELHI
  

  Goods detained on alleged mis-declaration in the description of the goods - Revenue contends goods imported was machine declared as heavy melting scrap – appellate authority held that detained goods can be released upon mutilation rendering it as scrap and clearance upon payment of duty as scrap - Held that:-There is no evidence to controvert averment of appellant about life and condition of goods. Neither revenue had any material to prove that the goods imported was not 20 50 years nor proved that the same is usable for more than the period certified by Chartered Engineers without major repair and renovation and also looking to lapse of 18 months from the import. Accordingly there is no scope to reverse the first appeal order – Appeal of Revenue dismissed.

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• 2012 (2) TMI 266 - CESTAT, NEW DELHI
  

  Availment of non- existent Cenvat Credit by Second stage dealer on goods – non-manufacturing & non-payment of duty by manufacturer of goods – assessee claimed credit on basis of invoices showing payment of duty – Held that:- Prima facie there are evidences appearing to show that the credit that was passed on was not against proper duty payment. The real merit in the matter can be decided only during final hearing. Thereby, appellants are directed to make pre-deposit.

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• 2012 (2) TMI 265 - CESTAT, NEW DELHI
  

  Cenvat credit on services used for outward transportation of goods from the factory to the buyers premises - period involved prior to 01.04.2008 – appellant provided evidences showing satisfaction of conditions specified in Circular no. 97/6/2007-ST dated 23.8.07 for availment of credit - Held that:- Matter was not contested at earlier stages by the Appellants and they did not have opportunity to adduce evidence. Now evidences are submitted which should be examined and credit allowed if they are legally eligible. The impugned order is set aside and the appeal is allowed by remand to the original authority.

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• 2012 (2) TMI 262 - SUPREME COURT
  

  Bad debts versus Provisions for bad and doubtful debts - rural banking - Scope and ambit of the proviso to Section 36(1)(vii) - whether deduction of the bad and doubtful debts actually written off in view of Section 36(1)(vii) limits the deduction allowable under the proviso to the excess over the credit balance made under clause (viia) of Section 36(1) – rural advances - Held that:- U/s 36(1)(vii), the assessee would be entitled to general deduction upon an account having become bad debt and being written off as irrecoverable in the accounts of the assessee for the previous year, while the proviso will operate in cases under clause (viia) to limit deduction to the extent of difference between the debt or part thereof written off in the previous year and credit balance in the provision for bad and doubtful debts account made under clause (viia). The proviso to Section 36(1)(vii) will relate to cases covered under Section 36(1)(viia) and has to be read with Section 36(2)(v) of the Act. Thus, the proviso would not permit benefit of double deduction, operating with reference to rural loans. Therefore, we hold that provisions of Sections 36(1)(vii) and 36(1)(viia) are distinct and independent items of deduction and operate in their respective fields – Decided in favor of assessee.

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• 2012 (2) TMI 261 - ITAT, KOLKATA
  

  Waiver of penalty u/s 271AAA – search & seizure conducted – disclosure of income in a statement u/s 132(4) – underpayment of self assessment taxes – shortfall paid within permissible time, upon receiving the notice of demand u/s 156 – Held that:- On the facts of the present case wherein entire tax and interest has been duly paid well within the time limit for payment of notice of demand u/s 156 and well before the penalty proceedings were concluded, the assessee could not be denied the immunity u/s 271AAA(2) only because entire tax, along with interest, was not paid before filing of income tax return or, for that purpose, before concluding the assessment proceedings – Decided against the Revenue.

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• 2012 (2) TMI 260 - AUTHORITY FOR ADVANCE RULINGS
  

  DTAA with Singapore – Singapore company entered into contract with IOCL for residual offshore construction work and Installation of SPM - contract with L&T Ltd for installation and construction services for Single Point Mooring (SPM) - applicant contending non-existence of PE in India and presence in India for less than 180 days – taxability of revenue - 'FTS' or 'Royalty' – applicability of Section 44BB in respect of the contract with L&T - Held that:- In case of Ishikawajima-Harima Heavy Industries Ltd.(2007 - TMI - 3467 - Supreme Court) it is specified that where consideration of each portion of the contract is separately specified, it can be separated from the whole. Since payment in respect of contract with IOCL specifies separately consideration for mobilization and demobilization falling under the definition of royalty under Article 12.3(b) of the DTAA , consideration for actual installation falling under the definition of FTS as per Article 12.4(a) of the DTAA, and the rest relating to pre and post execution work and drawing/design documentation. Therefore, part of consideration is in nature of FTS and part of consideration is in nature of royalty u/s 9(1)(vii) & (vi) of the Act and under Article 12 of DTAA

  In respect of contract with L&T – it is noted that services and facilities being rendered by the applicant go beyond installation and include pre-installation services, post-installation services, procurement and transportation and sub-contract is effective as of 23.04.2008 and obligations under the contract continued to exist even after the vessels left the shores of India. The applicant's plea of counting the duration of services from 3.12.2008 when the applicant's vessels were mobilized to India till 19.05.2009 when the vessels left the shores of India is untenable and unacceptable.

  Hence the applicant has a PE in India in terms of Article 5.5 of the DTAA and falls within the ambit of Section 44BB of the Act. The consideration received by the applicant for mobilization and demobilization is taxable in India u/s 44BB of the Act.

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• 2012 (2) TMI 259 - DELHI HIGH COURT
  

  Long term capital gains – period of holding – property sold was transferred to trust on 05.01.1996 – acquired by previous owner prior to 01.04.1981 – Revenue contending indexed cost of acquisition from 05.01.1996 – Held that:- The expression “held by the assessee” used in Explanation (iii) to Section 48 has to be understood in the context and harmoniously with other Sections. The cost of acquisition stipulated in Section 49 means the cost for which the previous owner had acquired the property. The term “held by the assessee” should be interpreted to include the period during which the property was held by the previous owner. See CIT v. Manjula J.Shah [2011 (10) TMI 406 - BOMBAY HIGH COURT] – Decided against the Revenue.

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• 2012 (2) TMI 258 - AUTHORITY FOR ADVANCE RULINGS
  

  DTAA with Australia – Australian company entered into distribution agreement with Indian Company(IMI Ltd) for the distribution and sale of its software and hardware products in India - sale and collection of software product is made through the distributor - no physical delivery of the product is made to the distributor - taxability of the payments made by distributor for the software product, and for the right to downloand/receive version updates for the software products of the applicant – applicant submitted that payment received are for sale of copyrighted article - Held that:-In the Income-tax Act, royalty is defined as consideration for the transfer of all or any rights (including the grant of license) in respect of any Copyright. Article 12 of the India-Australia DTAC defines royalties to mean payment made as consideration for the use of or the right to use any copyright, patent, design or model, plan, secret formula or process, trademark or other like property or right. The definition in article is seen to be wider than the one contained in the Income-tax Act. Therefore, payments concerned would be royalty as defined in Article 12 of the DTAA between India and Australia and u/s 9(1)(vi) of the Income-tax Act.

  Payment received by way of Subscription for the updates would also be royalty and not 'FTS' under DTAC & Income Tax Act.

  Applicant contention about non-existence of PE in India – Held that:- Since payment received is royalty, the amount is liable to be taxed in India under Article 12.2 of the DTAC.

  Further, distributor IMI Ltd is required to withhold taxes in India in terms of Section 195 of the Income-tax Act at the rate of 10% of the gross amount of royalty, as provided under Article 12.2 of the DTAC.

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• 2012 (2) TMI 257 - AUTHORITY FOR ADVANCE RULINGS
  

  Maintainability of application before Advance Rulings – Return of Income filed for A.Y. 2009-10 - application filed on 17.05.2010 raising the identical questions – Held that:- Date of filing of the return is the relevant date to consider the applicability of the proviso to section 245R(2), and that the filing of the return of income generates questions including the ones raised before this Authority, the jurisdiction to give a ruling in the present application has to be held to be barred. We, therefore, reject the application as being barred by clause (i) of the proviso to section 245R(2). See SEPCO III Electric Power Corporation (2011 - TMI - 207237 - Authority For Advance Rulings)

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• 2012 (2) TMI 256 - AUTHORITY FOR ADVANCE RULINGS
  

  Maintainability of application before Advance Rulings - transaction based on which Rulings on various questions are sought, was entered into on 1.10.2006 - assessments for the A.Y. 2007-2008 have been completed - Held that:- Date of filing of the return is the relevant date to consider the applicability of the proviso to section 245R(2) , and that the filing of the return of income generates questions including the ones raised before this Authority, the jurisdiction to give a ruling in the present application has to be held to be barred by clause (i) of the proviso to section 245R(2) of the Act. See SEPCO III Electric Power Corporation (2011 - TMI - 207237 - Authority For Advance Rulings) – Application dismissed.

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• 2012 (2) TMI 255 - AUTHORITY FOR ADVANCE RULINGS
  

  Maintainability of application before Advance Rulings – Return of Income filed u/s 139(1) on 31.03.2010 - transaction based on which Rulings on various questions are sought, was entered into on 26.4.2008 and 26.11.2008 – application filed on 17.6.2010 – Held that:- Date of filing of the return is the relevant date to consider the applicability of the proviso to section 245R(2), and that the filing of the return of income generates questions including the ones raised before this Authority, the jurisdiction to give a ruling in the present application has to be held to be barred. We, therefore, reject the application as being barred by clause (i) of the proviso to section 245R(2). See SEPCO III Electric Power Corporation (2011 - TMI - 207237 - Authority For Advance Rulings)

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• 2012 (2) TMI 253 - AUTHORITY FOR ADVANCE RULINGS
  

  Maintainability of application before Advance Rulings – Return of Income filed u/s 139(1) on 31.03.2010 - transaction based on which Rulings on various questions are sought, was entered into on 31.10.2007 – application filed on 06.07.2010 – Held that:- Date of filing of the return is the relevant date to consider the applicability of the proviso to section 245R(2), and that the filing of the return of income generates questions including the ones raised before this Authority, the jurisdiction to give a ruling in the present application has to be held to be barred. We, therefore, reject the application as being barred by clause (i) of the proviso to section 245R(2). See SEPCO III Electric Power Corporation (2011 - TMI - 207237 - Authority For Advance Rulings).

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• 2012 (2) TMI 252 - ITAT, BANGALORE
  

  Proprietor firm converted into partnership - Cost of acquisition - Asset acquired by succession - "Book Value OR Fair Market Value" - Held That:- AO had not examined as to whether the cost value given by the assessee firm is correct or otherwise, We remand the matter back to AO with a specific direction to examine as to whether the value [FMV] shown by the assessee firm is correct as on 1.4.1981 and to take appropriate action in accordance with the provisions of the Act at that relevant period. - Reliance placed on Sunil Siddharthbhai vs CIT (1985 -TMI - 5909 - SUPREME Court)

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• 2012 (2) TMI 242 - SUPREME COURT
  

  Classification of 'Electronic Automatic Regulators' - Revenue classified it under Chapter sub-heading 8543.89 – Central Government vide Notification dated 01.03.2002 classified it under Chapter sub-heading 9032.89 - Held that:- For the period after 01.03.2002, in view of the Notification issued by the Central Government, the goods, namely Electronic Automatic Regulators would fall under Chapter sub-heading 9032.89 – Decided in favor of assessee.

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• 2012 (2) TMI 240 - KARNATAKA HIGH COURT
  

  Period of Limitation – Petition filed u/s 433(e) & 433(f) of Companies Act, 1956 seeking to wind up the Respondent-Company – non-payment of salary of the petitioner (part-time employee) for period March 2002 to June 2002 – Held that:- Period of limitation for claiming salary is 3 years and u/s 18 of Limitation Act, acknowledgment of liability should be before the expiry of period of limitation. In present case, limitation starts from 1.7.2002 and ends on 30.06.2005. However, the first letter had been addressed on 22.9.2007 which itself is beyond the period of said three years.

  Therefore, documents of alleged acknowledgment of liability dated 25.09.07 onwards produced do not constitute an acknowledgment of liability. Hence, no debt is enforceable against the Respondent and consequently no ground u/s 433 of the Companies Act, 1956 – Decided against the petitioner.

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• 2012 (2) TMI 238 - ITAT, AHMEDABAD
  

  Valuation of Closing Stock - AO made additions as "Excise Duty" not included in stock - Held That:- In view of Asst.CIT vs. Narmada Chematur Petrochemicals Ltd. (2010 - TMI - 202159 - Gujarat High Court), duty to be included only at the time of sale since goods not cleared additions not justified.

  TDS - Delivery of gas to be made from buyer to seller at the outlet station - Held That:- Its a contract of sale/ purchase and not of work thus no liability to deduct TDS under 194C.

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• 2012 (2) TMI 237 - ITAT, DELHI
  

  Best Judgment - Yield of paddy reflected at 63% AO adopted at 65% - Held That:- Additional evidences in support of yield and trading results were filed as revenue could not confront the same. - Decided in favour of assessee.

  Cash Credits - Unsecured Loan - Balance confirmed by Ram Prasad Rawat - Held That:- No infirmity in CIT(A) order. Appeal of revenue rejected.

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